CHAPTER 9
POST-ELECTION ACTIONS; DIRECT LEGISLATION
Ch. 9 Note
NOTE: 2005 Wis. Act 451, which made major revisions to the election laws, including to Chapter 9, contains an extensive prefatory note explaining the changes.
Ch. 9 Cross-reference
Cross-reference: See definitions in s.
5.02.
9.01(1)(1)
Petition; fees; general procedures. 9.01(1)(a)1.1. Any candidate voted for at any election or any elector who voted upon any referendum question at any election may petition for a recount. The petitioner shall file a verified petition or petitions with the proper clerk or body under
par. (ar) not earlier than the time of completion of the canvass following canvassing of any valid provisional and absentee ballots under
ss. 6.97 (4) and
7.515 (6) and, except as provided in this subdivision, not later than 5 p.m. on the 3rd business day following the last meeting day of the municipal or county board of canvassers determining the election for that office or on that referendum question following canvassing of all valid provisional and absentee ballots or, if more than one board of canvassers makes the determination, not later than 5 p.m. on the 3rd business day following the last meeting day of the last board of canvassers which makes a determination following canvassing of all valid provisional and absentee ballots. If the chairperson of the board or chairperson's designee makes the determination for the office or the referendum question, the petitioner shall file the petition not earlier than the last meeting day of the last county board of canvassers to make a statement in the election or referendum following canvassing of all valid provisional and absentee ballots and not later than 5 p.m. on the 3rd business day following the day on which the government accountability board receives the last statement from a county board of canvassers for the election or referendum following canvassing of all valid provisional and absentee ballots.
9.01(1)(a)2.
2. Each verified petition under
subd. 1. shall state all of the following:
9.01(1)(a)2.a.
a. That at the election the petitioner was a candidate for the office in question or that the petitioner voted on the referendum question in issue.
9.01(1)(a)2.b.
b. That the petitioner is informed and believes that a mistake or fraud has been committed in a specified ward or municipality in the counting and return of the votes cast for the office or upon the question or that another specified defect, irregularity, or illegality occurred in the conduct of the election.
9.01(1)(a)3.
3. The petition under
subd. 1. shall specify each ward, or each municipality where no wards exist, in which a recount is desired. If a recount is requested for all wards within a jurisdiction, each ward need not be specified.
9.01(1)(a)4.
4. The petition under
subd. 1. may be amended to include information discovered as a result of the investigation of the board of canvassers or the chairperson of the board, or chairperson's designee, after the filing of the petition if the petitioner moves to amend the petition as soon as possible after the petitioner discovers, or reasonably should have discovered, the information that is the subject of the amendment and if the petitioner was unable to include the information in the original petition.
9.01(1)(ad)
(ad) Upon receiving a petition for a recount, the clerk or body receiving the petition shall calculate any fee due under
par. (ag) 1m. or reasonably estimate any fee due under
par. (ag) 2. The clerk or body shall provide the petitioner promptly with the total due or estimate.
9.01(1)(ag)1.1. If the difference between the votes cast for the leading candidate and those cast for the petitioner or the difference between the affirmative and negative votes cast upon any referendum question is less than 10 if 1,000 or less votes are cast or not more than 0.5% of the total votes cast for the office or on the question if more than 1,000 votes are cast following canvassing of all valid provisional and absentee ballots, the petitioner is not required to pay a fee.
9.01(1)(ag)1m.
1m. If the difference between the votes cast for the leading candidate and those cast for the petitioner or the difference between the affirmative and negative votes cast upon any referendum question is at least 10 if 1,000 or less votes are cast or is more than 0.5% but not more than 2% if more than 1,000 votes are cast following canvassing of all valid provisional and absentee ballots, the petitioner shall pay a fee of $5 for each ward for which the petition requests a ballot recount, or $5 for each municipality for which the petition requests a recount where no wards exist.
9.01(1)(ag)2.
2. If the difference between the votes cast for the leading candidate and those cast for the petitioner or the difference between the affirmative and negative votes cast upon any referendum question is more than 2% if more than 1,000 votes are cast following canvassing of all valid provisional and absentee ballots, the petitioner shall pay a fee equal to the actual cost of performing the recount in each ward for which the petition requests a recount, or in each municipality for which the petition request a recount where no wards exist.
9.01(1)(ag)3.
3. All fees calculated or estimated under
par. (ad) shall be prepaid in cash or another form of payment which is acceptable to the officer to whom they are paid. No petition for which a fee is required is valid unless the proper calculated or estimated fee is paid at the time of filing.
9.01(1)(ag)3m.
3m. The petitioner shall pay any balance owing toward the fee due under
subd. 2. within 30 days after the clerk or body receiving the petition provides the petitioner with a written statement of the amount due. If the petitioner has overpaid the fee due under
subd. 2. the clerk or body receiving the petition shall refund the amount overpaid within 30 days after the board of canvassers makes its determination in the recount.
9.01(1)(ag)4.
4. The board shall deposit all moneys received by it into the account under
s. 20.511 (1) (g), and shall pay the fees required for each recount to the county clerks of the counties in which the recount is to be held. The county clerk shall deposit fees received by him or her with the county treasurer. The municipal clerk shall deposit fees received by him or her with the municipal treasurer.
9.01(1)(ag)5.
5. In this paragraph, the "leading candidate" includes every individual whose vote total at the time of the filing of the recount petition would entitle the individual to election or nomination to office. In an election in which more than one office of the same type is to be filled from the same territory, the number and percentage of votes cast under this paragraph shall be determined by first dividing the total number of votes cast for the office by the number of offices being filled at the election from the same territory.
9.01(1)(am)
(am) A person who files a petition under
par. (a) may withdraw the petition. If the petitioner withdraws a petition before any board of canvassers that canvassed the original election begins its recount, the clerk or body shall refund any fee paid under
par. (ag).
9.01(1)(ar)1.1. In the event of a recount for any office, the petition shall be filed with the clerk or body with whom nomination papers are filed for that office.
9.01(1)(ar)2.
2. In the event of a recount for a referendum, the petition shall be filed with the clerk of the jurisdiction in which the referendum is called, and, in the case of the state, with the board.
9.01(1)(ar)3.
3. Whenever a clerk receives a valid petition and any payment under
par. (ag) 3., the clerk shall thereupon notify the proper board of canvassers. Whenever the board receives a valid petition and any payment under
par. (ag) 3., the board shall promptly by certified mail or other expeditious means order the proper county boards of canvassers to commence the recount. County boards of canvassers shall convene no later than 9 a.m. on the second day after receipt of an order and may adjourn for not more than one day at a time until the recount is completed in the county, except that the board may permit extension of the time for adjournment. Returns from a recount ordered by the board shall be transmitted to the office of the board as soon as possible, but in no case later than 13 days from the date of the order of the board directing the recount. The chairperson of the board or the chairperson's designee may not make a determination in any election if a recount is pending before any county board of canvassers in that election. The chairperson of the board or the chairperson's designee need not recount actual ballots, but shall verify the returns of the county boards of canvassers in making his or her determinations.
9.01(1)(b)
(b) The proper board of canvassers shall reconvene no earlier than 9 a.m. on the day following delivery of notice to all candidates under
sub. (2) and no later than 9 a.m. on the day following the last day for filing of a petition. The board of canvassers shall then proceed to recount the ballots in the wards or municipalities specified and to review the allegations of fact contained in the petition or petitions. The recount shall proceed for each ward or municipality as follows:
9.01(1)(b)1.
1. The board of canvassers shall first compare the poll lists and determine the number of voting electors.
9.01(1)(b)2.
2. The board of canvassers shall then examine the absentee ballot envelopes. Any defective absentee ballot envelopes shall be laid aside, properly marked and carefully preserved. The number of voters shall be reduced by the number of ballot envelopes set aside under this subdivision. An absentee ballot envelope is defective only if it is not witnessed or if it is not signed by the voter or if the certificate accompanying an absentee ballot that the voter received by facsimile transmission or electronic mail is missing.
9.01(1)(b)3.
3. The board of canvassers shall then examine the container or bag containing the ballots to be certain it has not been tampered with, opened, or opened and resealed. Any irregularities or possible tampering with the container or bag shall be noted.
9.01(1)(b)4.a.a. When the container or bag has been checked, it shall be opened and the contents removed. The board of canvassers shall, without examination other than what is necessary to determine that each is a single ballot, count the number of ballots in the container or bag, excluding ballots removed under
s. 7.51 (2) (e).
9.01(1)(b)4.b.
b. The board of canvassers shall then, for each opened absentee ballot envelope that was laid aside as defective under
subd. 2., without inspection, randomly draw one absentee ballot from the container or bag. In differentiating absentee ballots from other ballots, the board of canvassers shall presume that a ballot initialed only by the municipal clerk, the executive director of the board of election commissioners, or a deputy clerk or secretary is an absentee ballot. If there are more defective absentee ballot envelopes than there are probable absentee ballots, all of the probable absentee ballots shall be removed from the container or bag. Additional ballots shall be removed only if the number of remaining ballots still exceeds the number of voting electors recorded under
subd. 1., reduced by the number of defective envelopes set aside under
subd. 2. All ballots removed shall not be counted, but shall be marked as to the reason for their removal, set aside and carefully preserved.
9.01(1)(b)4.c.
c. If, after completing the steps set forth in
subd. 4. b., the number of ballots still exceeds the number of voters, the board of canvassers shall place all ballots face up to check for blank ballots. Any blank ballots shall be so marked, set aside and carefully preserved.
9.01(1)(b)4.d.
d. If, after completing the steps set forth in
subd. 4. c., the number of ballots still exceeds the number of voters reduced by the number of defective envelopes set aside under
subd. 2., the board of canvassers shall place all ballots face down to check the initials. Any ballot not properly initialed by 2 inspectors or any absentee ballot not properly initialed by the municipal clerk, the executive director of the board of election commissioners, or a deputy clerk or secretary shall be temporarily set aside and the board of canvassers shall, without inspection, randomly draw from these ballots as many as are necessary to reduce the number of ballots to equal the number of voters. Any ballots removed for lack of initials shall not be counted but shall be marked, set aside and carefully preserved.
9.01(1)(b)4.e.
e. If, after completing the steps set forth in
subd. 4. d., the number of ballots still exceeds the number of voters reduced by the number of defective envelopes set aside under
subd. 2., the remaining ballots shall be returned to the container or bag and the board of canvassers shall draw a number of ballots equal to the excess number of ballots by chance and without inspection from the container or bag. These ballots shall not be counted but shall be marked as having been removed by the canvassers on recount due to an excess number of ballots, set aside and carefully preserved.
9.01(1)(b)5.
5. When the number of ballots and voters agree, or after noting that the number of voters exceeds the number of ballots, the board of canvassers shall return all ballots to be counted to the ballot box and shall turn the ballot box in such manner as to thoroughly mix the ballots. The recount shall then begin.
9.01(1)(b)5m.
5m. Except as otherwise provided in this section, the recount shall be conducted in accordance with
s. 7.51.
9.01(1)(b)6.
6. In recounting the votes cast on a voting machine in which the record of the votes cast is contained in the machine, the board of canvassers shall make a record of the number of the seal, if any, the number of the protective counter or other device, if one is provided, and shall open the recording compartment of the machine, and without unlocking the machine against voting, shall recount the votes thereon. If the machine is an electronic voting machine utilizing a detachable record of votes cast, the record shall be retabulated under
s. 5.90.
9.01(1)(b)7.
7. When a machine is recounted, the board of canvassers shall proceed to inspect and examine the machine showing the votes cast for each office or referendum specified in the petition, and shall make a record of the votes for that office or referendum as shown on that voting machine, which they shall certify as correct, in the presence of at least one witness.
9.01(1)(b)8.
8. If upon the recount it is found that the original canvass of the returns has been correctly made from a voting machine and that a discrepancy still remains unaccounted for, the board of canvassers shall publicly unlock the voting and counting mechanism of the machine, and shall proceed to examine and test the machine to determine the cause of the discrepancy in returns from the machine. A similar test shall be performed for electronic voting machines to ascertain whether there is any malfunction in the machine. After the completion of the examination and test, the board of canvassers shall prepare a statement giving the results of the examination and test. The statement shall be witnessed by at least one witness.
9.01(1)(b)8m.
8m. Where a voting machine or electronic voting system is used, and an error in the vote total as shown on the machine or record of votes cast is clearly apparent, the board of canvassers may change the vote total as shown by the machine or system and certify or use a different total to certify a different result than is indicated by the machine or system if there is evidence of a specific malfunction in the machine or system, if the malfunction could reasonably have caused the error, and if clear and convincing evidence exists which indicates the exact actual total number of votes cast. The burden of demonstrating that a vote total shown on a machine or record of votes cast is incorrect rests with the party seeking to change the recorded result on the basis of clear and convincing evidence.
9.01(1)(b)8s.
8s. If an electronic voting system is used in which ballots are distributed to electors, and the board of canvassers makes a determination of elector intent under
s. 7.50, the board of canvassers shall add to the result generated by the automatic tabulating equipment any votes counted by the board of canvassers in making its determination.
9.01(1)(b)9.
9. If upon the recount it appears that the original canvass of the returns by the election officials was incorrect, the statements and determinations of the board of canvassers shall be corrected accordingly.
9.01(1)(b)10.
10. Recounts at polling places utilizing an electronic voting system in which ballots are distributed to electors shall be performed in accordance with the procedure for recounting paper ballots insofar as applicable, except as provided in
s. 5.90. Recounts at polling places utilizing electronic voting machines shall be performed in accordance with the procedure for recounting votes cast on mechanical voting machines, insofar as applicable, except as provided in
s. 5.90.
9.01(1)(b)11.
11. All steps of the recount shall be performed publicly. Except as provided in
subd. 12., all materials and ballots may be viewed and identified by the candidates, the person demanding the recount and their authorized representatives and counsel, but only members of the board of canvassers and tabulators assisting them may touch any of the materials or ballots. The candidates, the person demanding the recount and their authorized representatives and counsel may object to the counting of any ballot. Any errors shall be corrected.
9.01(1)(b)12.
12. Except as authorized in
s. 6.47 (8), the board of canvassers shall not permit access to the name of any elector who has obtained a confidential listing under
s. 6.47 (2) during the recanvass.
9.01(2)
(2) Notice to candidates. When the recount concerns an election for an office, the clerk or body with whom the petition is filed shall promptly prepare a copy of the petition for delivery to each opposing candidate for the same office whose name appears on the ballot. In a recount proceeding for a partisan primary, the clerk or body shall prepare a copy of the petition for delivery to each opposing candidate for the same party nomination for the same office, to each opposing candidate for the party nomination of each other party for the same office and to each independent candidate qualifying to have his or her name placed on the ballot for the succeeding election. A candidate or agent designated by a candidate may personally accept delivery of a copy of the petition. Upon such delivery, the clerk or body shall require the candidate or agent to sign a receipt therefor. If a candidate or agent does not personally accept delivery, the clerk or body shall then promptly deliver the copies of the petition to the sheriff, who shall promptly deliver the copies of the petition to each candidate at the address given on the candidate's nomination papers, without fee, in the manner provided for service of a summons in civil actions.
9.01(3)
(3) Representation and observation. The petitioner, all opposing candidates and interested persons shall be entitled to be present in person and by counsel to observe the proceedings.
9.01(4)
(4) Right to complete recount. Whenever a recount petition for part of the wards within a jurisdiction or district, or for part of the municipalities within a district where there are no wards, is filed under this section, the opposing candidate, or any voter or other interested party including a municipality if on a referendum question, may similarly file a petition for recount in any or all of the remaining wards or municipalities in the jurisdiction or district. The petition shall be filed not later than 5 p.m. 2 days after the board of canvassers completes the first recount. The proper board of canvassers shall reconvene at 9 a.m. on the next business day following the filing of the petition and proceed to recount the ballots in all wards or municipalities specified and to otherwise review the allegations of fact contained in the petition. Any errors shall be corrected.
9.01(5)
(5) Oaths; minutes; witness fees; tabulators; timing; publication. 9.01(5)(a)(a) The board of canvassers or the chairperson of the board or the chairperson's designee shall keep complete minutes of all proceedings before the board of canvassers or the chairperson or designee. The minutes shall include a record of objections and offers of evidence. If the board of canvassers or the chairperson or chairperson's designee receives exhibits from any party, the board of canvassers or the chairperson or designee shall number and preserve the exhibits. The board of canvassers or the chairperson or chairperson's designee shall make specific findings of fact with respect to any irregularity raised in the petition or discovered during the recount. Any member of the board of canvassers or the chairperson or chairperson's designee may administer oaths, certify official acts and issue subpoenas for purposes of this section. Witness fees shall be paid by the county. In the case of proceedings before the chairperson of the board or chairperson's designee, witness fees shall be paid by the board.
9.01(5)(b)
(b) The board of canvassers conducting a recount may select and employ tabulators to assist it in its duties. Tabulators shall perform their duties under the direction of the board of canvassers. Only the members of the board of canvassers are competent to make any determination as to the validity of any vote tabulated. Compensation of tabulators shall be determined under
s. 7.03.
9.01(5)(bm)
(bm) Upon the completion of its proceedings, a board of canvassers shall deliver to the board one copy of the minutes of the proceedings kept under
par. (a). In addition, in the case of a recount of an election for state or national office, for each candidate whose name appears on the ballot for that office under the name of a political party, the board of canvassers shall deliver one copy of the minutes to the chief officer, if any, who is named in any registration statement filed under
s. 11.05 (1) by the state committee of that political party, and in the case of a recount of an election for county office, for each candidate whose name appears on the ballot for that office under the name of a political party, the board of canvassers shall deliver one copy of the minutes to the chief officer, if any, who is named in any registration statement filed under
s. 11.05 (1) by the county committee of that political party.
